Child's counseling records posted on internet

[dlw99]

What is the name of your state (only U.S. law)? Massachusetts

Thanks in advance for your consideration of my question.

My son was a Plaintiff in a lawsuit for intentional infliction of emotional distress filed in Oct.2006 and settled (dismissed with prejudice) in July 2007.

Defendant gave counseling records to a mentally ill woman who posted them on her very sick website. This woman is now being held without bail by order of the district court in a mental institution.

The counseling records were not sealed by the court, and no request to do so was made by our attorney.

My son is now 8 years old.

My question is this:

Do I have cause to file a complaint against Defendant's attorney with the Board of Bar Overseers for giving him my child's counseling records?

 

[You Are Guilty]

Maybe I misread this, but you want to know if you can hold the defendant's lawyer responsible for something the defendant did?

Unless the defendant is a minor and their lawyer was also their parent, I don't see any way that's going to happen.

 

[dlw99]

To clarify:

I was told by a local attorney/chidrens advocate, that the defendant's attorney had no right to hand out my son's counseling records to anyone.

If you know anything about the rights of my child in this matter, I would appreciate some direction.

Thank you.

 

[Zigner]

I was told by a local attorney/chidrens advocate, that the defendant's attorney had no right to hand out my son's counseling records to anyone.

If you know anything about the rights of my child in this matter, I would appreciate some direction.

Thank you.

In your OP, you state that the DEFENDANT did this. Not his/her attorney.

 

[dlw99]

You Are Correct

Right. What I'd like to know is what rights my child had in that matter to have his counseling records kept private?

Did the defendant's attorney have a right to give the defendant the counseling records? Did the defendant have a right to the records?

Did anyone have a duty to keep the records of a child private?

Thank you.

 

[quincy]

First, your son's attorney should have requested that the court records be sealed back in 2006 and that the counseling records be kept confidential.

The defendant's attorney, and the defendant, had the right to review your son's counseling records if the records were an integral part of the original suit and were disclosed as part of discovery.

The defendant did not have the right to distribute copies of your son's counseling records to others if these were determined by the court at the time to be confidential.

The defendant's attorney, however, is not responsible for what the defendant did with the records after the original action, if the court records were not sealed and the counseling records had become part of a public record of the original action.

 

[dlw99]

Thanks

My attorney did not ask for the records to be sealed, and that attorney has since died.

On the advice of my son's new attorney, I am going to file a complaint with the BBO on the defendant's atty.

Son's attorney submits that all officers of the court (including the judge) had a duty to protect the counseling records of a child.

I looked up defendant's attorney, and he has some reprimands within the past three years with the BBO.

Your advice is appreciated, and I'll let you know how they respond.

 

[cyjeff]

I would recommend against going after the judge.

that will end in tears.

 

[quincy]

I am glad that you have consulted with an attorney on the matter. Massachusetts court decisions on the disclosure of counseling records have been conflicting at best, but there is not the same waffling when it comes to records involving young children.

Generally, the privacy laws of Massachusetts that cover counseling records apply only to those records maintained by licensed counselors (psychotherapists, social workers). There is a statutory protection from disclosure of records, a privilege that attaches to these records, that will extend often to the subpoena of the records.

Under MGL Chapter 233 (§20 B) and MGL Chapter 112 (§135 B), information from the counseling records of licensed professionals is confidential. There are exceptions. An exception would apply when, in a judicial proceeding, the mental or emotional condition of a party is an element of that person's claim or defense. In such a case, if the judge finds that it is in the interest of justice to have the records disclosed, the counseling records can be ordered disclosed (a party could also voluntarily waive the privilege and voluntarily disclose his own counseling records).

After reviewing a few Massachusetts cases involving court-ordered production of counseling records which are covered by privilege, the privilege afforded the records is not necessarily lost or waived even after the records are disclosed - the records should remain confidential. It is only if the records are disclosed voluntarily that they can lose their privilege and confidentiality.

Publicly funded, unlicensed service providers are generally NOT covered by this privilege, however (although I believe reports maintained by domestic abuse counselors, licensed or not, are privileged??). If your son saw an unlicensed counselor, therefore, the counseling records may not have been afforded the same protections as those records maintained by licensed counselors.

Although your son's first attorney is the one, I believe, who should have moved to have the records sealed back in 2006, the judge could have (and probably should have) placed limitations on any order made for the production of your son's counseling records. The judge could have ordered that the records were to be viewed in court only, with no disclosure to others, with no photocopying, for the attorneys' eyes only, etc. That the judge did not do this could be worth a review.

But, absent any order prohibiting the release of the records to others, and absent any privilege that was retained after disclosure to the parties by a court order, I would question the complaint against the defense attorney. . . . .

 

[dlw99]

Thanks again

Thank you for taking the time with your response, quincy.

Would it be better to go back to the court and ask that the records be sealed now, and see if the court will order them removed from the website?

My primary concern is for the privacy rights of my child.

 

[quincy]

You can make a written motion to the court to have the records sealed and state your grounds for the motion. You must provide detailed facts that justify the sealing, along with an affidavit in support of the sealing.

Usually a motion to request that records be impounded or sealed is done prior to any material being disclosed in a court action (which is why I believe your son's first attorney is the one most at fault here), but a motion to the court can be made now.

There will be an informal hearing scheduled, then there will be a notice of a formal hearing, and then the court will make its findings.

The most important thing you should be prepared to do is demonstrate to the court any risks of specific harm that have come or will come to your son if the records are not sealed. And you must be able to show that the privacy rights of your son have not already been irretrievably lost by the records having been public for the last four years (ie. you must show that further harm will result if the records are not sealed now).

Although you can request in your motion that the entire record be sealed, the court may find that redacting only certain information (ie. your son's name) may be all that is necessary to protect your son's privacy rights.

What you are up against is the common-law right of access to all judicial records. They are presumptively open to the public. The judge will balance the privacy interests of your son (which is certainly a compelling interest) against the public's right of access. You are also up against the presumption that a plaintiff in any case (ie. your son in the original action) is aware that, except under the most exceptional of circumstances, court hearings are public record.

You can pick up forms at the court for filing your motion, but I would consult again with your son's attorney/child advocate prior to filing.

Good luck.

 

[dlw99]

Thanks again

I would be happy just to have his name removed from the record and the record (and possibly sick comments about him) removed from the website.

This is an intense case of cyber-bullying of a child by a mentally ill adult.

They are working on a cyber bully bill here in Massachusetts, but we don't have one yet.

Since that adult is now confined without bail to a mental institution, it shouldn't be real difficult to demonstrate the need to protect my son's privacy rights.

My fear is that when he gets older he might see some of the unspeakably perverted statements made about him on the site in addition to the posting of his records. The attacks on him were made to get to me. It worked.

 

[quincy]

I believe, based on what you have posted, that the court will consider your motion and act to protect your son's privacy interests by, at the very least, redacting your son's identifying information from the records.

Good luck.